The Two-Way

1:39 pm

Wed October 2, 2013

U.S. Opposes Tech Firms' Plea To Release Surveillance Requests

An employee stands at the Microsoft booth during the 2013 Computex in Taipei on June 4, 2013.

Mandy ChengAFP/Getty Images

The United States filed a court brief (pdf) opposing the release of details concerning the surveillance requests they hand big tech companies in the U.S.

As we reported back in August, Microsoft and Google were trying to reach an agreement with the government about what they could reveal about national security requests for customer data. When tech companies receive those requests, they also come with a gag order, making it illegal for them to tell their customer or anyone else about the request from the government.

Those talks crumbled and the companies moved forward with a lawsuit filed in the secret Foreign Intelligence Surveillance Court, demanding the ability to publish information clearly showing the number of demands for user content like the text of an email.

"Unless this type of information is made public, any discussion of government practices and service provider obligations will remain incomplete," Brad Smith, a Microsoft vice president and general counsel, said in a blog post.

In a Sept. 30 filing with the court responding to the lawsuit, the Justice Department argued that releasing too much information about its requests would risk revealing its "sources and methods of intelligence collection, including the Government's ability (or inability) to conduct surveillance on particular electronic communication service providers or platforms."

"Releasing information that could induce adversaries to shift communication platforms in order to avoid surveillance would cause serious harm to the national security interests of the United States," the government said.

The tech companies have argued that by issuing gag orders, the government is denying them of their First Amendment rights. But the government dismissed that, saying the information they want to disclose is classified, therefore not covered by the First.

"Google said in a statement today, 'We're disappointed that the Department of Justice opposed our petition for greater transparency around FISA requests for user information. We also believe more openness in the process is necessary since no one can fully see what the government has presented to the court.'

"And Microsoft: 'We will continue to press for additional transparency, which is critical to understanding the facts and having an informed debate about the right balance between personal privacy and national security.'"